Colvell, Jr. v. Dept. Of the Air Force ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3245
JOHN E. COLVELL, JR.,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
John E. Colvell, Jr., of Roy, Utah, pro se.
J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
and Steven J. Gillingham, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3245
JOHN E. COLVELL, JR.,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
DECIDED: November 7, 2007
__________________________
Before MICHEL, Chief Judge, RADER and MOORE, Circuit Judges.
PER CURIAM.
Petitioner John E. Colvell, Jr., proceeding pro se, petitions for review of the final
decision of the Merit Systems Protection Board sustaining Mr. Colvell’s removal from his
position as an Aircraft Mechanic for medical disability reasons and finding that Mr.
Colvell failed to meet his burden of proof on his affirmative defenses of unlawful
discrimination based upon age and disability. 1 We affirm.
1
Colvell v. Dep’t of the Air Force, Docket No. DE0752070036-I-1 (M.S.P.B.
Feb. 16, 2007).
2007-3245
BACKGROUND
Mr. Colvell worked as an Aircraft Mechanic at Hill Air Force Base near Salt Lake
City, Utah since September 5, 1982. Mr. Colvell injured his knee during military training
prior to his civilian employment by the Air Force, and his problems with his knee
worsened during his civilian service. On or about September 1, 2005, Daniel Myers, Mr.
Colvell’s immediate supervisor, ordered a fitness for duty examination. Colonel (Dr.)
Chris Kleinsmith of the Occupational Services Unit at Hill AFB performed an initial
examination of Mr. Colvell on September 28, 2005 and follow-up examinations on
October 19, 2005 and November 27, 2005. Colonel Kleinsmith diagnosed Mr. Colvell
as suffering severe osteoarthritis and issued permanent work restrictions following the
November 27, 2005 examination. As a result of his medical restrictions, Mr. Colvell was
placed on indefinite leave on December 20, 2005.
After not being able to find a substitute position for Mr. Colvell, the agency issued
a proposal to remove the petitioner for physical inability to perform the duties of his
position on August 29, 2006. In responding to the proposal, Mr. Colvell contended that
his medical condition had not changed in four years and that the agency should
continue to accommodate his condition. On September 29, 2006, the Air Force issued
a decision letter removing the petitioner effective September 30, 2006.
Mr. Colvell filed an appeal with the Merit Systems Protection Board alleging that
the agency wrongfully removed him and that he was subject to discrimination based on
age and disability. The administrative judge found the Air Force had proven by
preponderant evidence that Mr. Colvell was medically unable to perform the duties of
his position. Colvell v. Dep’t of the Air Force, Docket No. DE0752070036-I-1, slip op. at
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7 (M.S.P.B. Feb. 16, 2007). Further, the administrative judge found that Mr. Colvell had
failed to prove his affirmative defenses of discrimination. This appeal followed.
DISCUSSION
We review the decision of the Board to determine whether it was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138,
140 (Fed. Cir. 1986).
On appeal, Mr. Colvell makes, in essence, two arguments: (1) his medical
disability was exaggerated; and (2) his separation was actually a result of personal
animus from Mr. Myers, his immediate supervisor. As to the argument that his medical
disability was exaggerated, Mr. Colvell specifically argues the Board failed to consider
that he was doing the job, his evaluations were high, Colonel Kleinsmith’s limitations
upon his physical activities were too severe, and that his disability could have been
accommodated.
First, the administrative judge explicitly considered Mr. Colvell’s good evaluations
and the fact his supervisor, Mr. Myers, considered him to be an outstanding employee.
Colvell v. Dep’t of the Air Force, Docket No. DE0752070036-I-1, slip op. at 6 (M.S.P.B.
Feb. 16, 2007). Second, there is no medical evidence to suggest that Colonel
Kleinsmith’s limitations upon Mr. Colvell’s activities were too severe. 2 Further, the
administrative judge discussed other evidence beyond that provided by Colonel
Kleinsmith to support the ruling. For example, the administrative judge noted that for
2
Mr. Colvell filed no pre or post-hearing submissions to the Board.
2007-3245 3
two years prior to his removal, Mr. Colvell missed one day of work each week—Mr.
Colvell stayed home every Wednesday to rest his leg. Id. at 5. The administrative
judge also considered whether Mr. Colvell could perform all his duties despite his leg
problem. The administrative judge found that Mr. Colvell could not and this finding is
supported by substantial evidence. The administrative judge also noted that Mr. Colvell
himself admitted that he could not perform all the duties of his position. Id. at 6. Finally,
the administrative judge recognized that while the Air Force may have tolerated Mr.
Colvell’s continuation in his job for many years, despite his inability to perform his full
duties, the Air Force was not required to do so indefinitely. See McFadden v. Dep’t of
Defense, 85 M.S.P.R. 18, 25 (1999); Trammell v. Dep’t of Veterans Affairs, 60 M.S.P.R.
79, 87 (1983) (ability to perform light duties irrelevant to charge of inability to perform
essential job duties).
Mr. Colvell’s second argument, that his separation was a result of personal
animus with Mr. Myers, was never before the Board. It is well established that failure to
raise an argument there ordinarily precludes its being raised upon appeal. Rockwell v.
Dep’t of Transp., 789 F.2d 908, 913 (Fed. Cir. 1986). Mr. Colvell filed no pre or post-
hearing submissions to the Board, and neither his appeal to the Board, nor his response
to interrogatories alleged any such animus from Mr. Myers. In any event, we note that
substantial evidence on the record undercuts Mr. Colvell’s allegation that Mr. Myers’
animus led to his removal: Mr. Colvell’s receipt of good evaluations and Mr. Myers
having considered him to be an outstanding employee. Therefore, even if we entertain
this argument, we would have to affirm the administrative judge’s findings as supported
by substantial evidence.
2007-3245 4
For the foregoing reason, the decision of the Board is affirmed.
2007-3245 5